Patton v. Fox

• Decision Date: 18 June 1902
• Parties: PATTON et al., Appellants, v. FOX et al
• Court: Missouri Supreme Court

69 S.W. 287

169 Mo. 97

PATTON et al., Appellants, v. FOX et al

Supreme Court of Missouri

June 18, 1902

Appeal from Chariton Circuit Court. -- Hon. Jno. P. Butler, Judge.

Reversed and remanded.

Dysart & Mitchell, J. L. Martin and A. W. Johnson for appellants.

(1) Under the pleadings the execution of every instrument and deed in plaintiffs' chain of title, which is regular on its face, acknowledged and duly recorded in Chariton county appearing to be executed by defendants, is "adjudged confessed." And under the answers the defendants ought to to have been permitted to deny the execution of the deed of trust offered in evidence by plaintiffs given by defendants to Delia Fox. In an ejectment suit, the cause of action in issue and on trial is the title, and "the word title includes and signifies all the means and documents which evidence and establish the right of plaintiffs to recover in the action which they brought." Chapman v. Dougherty, 87 Mo. 617; Davis v. Wood, 161 Mo. 17; R. S. 1899, sec. 746. (2) The defendants were not competent witnesses in the case to deny the signing and acknowledgment of the deed of trust to Delia Fox. The defendants admitted that Delia Fox, the cestui que trust in the deed, was dead. The deed of trust was a muniment of title on which plaintiffs relied. It was a link in plaintiffs' claim of title and was "in issue and on trial" in the cause of action. Sec. 4652, R. S. 1899; sec. 8918, R. S 1889; Chapman v. Dougherty, 87 Mo. 617; Davis v Wood, 161 Mo. 25; Messimer v. McCray, 113 Mo. 382; Lewis v. Weisenham, 1 Mo.App. 222; Ashbrook v. Letcher, 41 Mo.App. 369; State ex rel. v. Thompson, 81 Mo.App. 549; Baker v. Reed (Mo.), 62 S.W. 1001; Curd v. Brown, 148 Mo. 82; Hach v. Rollins, 158 Mo. 182; Martin v. Jones, 59 Mo. 181; Poe v. Domic, 54 Mo. 119; Meier v. Thieman, 90 Mo. 433; Miller v. Slupsky, 158 Mo. 643; Gunn v. Thruston, 130 Mo. 339; Warrick v. Hull, 102 Ill. 280; Weatherbee v. Roots, 72 Miss. 355; Mitchell's Admr. v. Woodward (Del.), 2 Mar. 311; 3 Jones on Evidence, p. 1703; Henry v. Kline, 93 Ky. 358; 1 Wharton on Evidence, sec. 466. (3) There is no charge, or proof, or hint of any fraud against either the justice of the peace who took the acknowledgment, or against the plaintiffs to whom the note and deed of trust were assigned and who in good faith paid full value therefor. The defendants make the justice of the peace their own witness and thereby vouch for his truthfulness. They call him to deny the certificate of acknowledgment to the deed of trust, but he affirms it. Even if the defendants were competent to testify, still their testimony, unsupported as it was, is not sufficient to impeach the certificate of the justice that the deed of trust was acknowledged before him. Comings v. Leedy, 114 Mo. 454; Biggers v. Building Co., 9 Mo.App. 210; Morrison v. McKee, 11 Mo.App. 594; Springfield, etc. Co. v. Donovan, 147 Mo. 622; Warrick v. Hull, 102 Ill. 280; Johnson v. VanVelsor, 43 Mich. 208; 2 Jones, Real Property, sec. 1197; Lickmon v. Harding, 65 Ill. 505; Keerr v. Russell, 69 Ill. 666; Fitzgerald v. Fitzgerald, 100 Ill. 385; Sassenberg v. Huseman, 182 Ill. 348; 1 Devlin on Deeds (2 Ed.), sec. 531; Shell v. B. & L. Assn. (Tenn.), 52 S.W. 909. (4) The defendant, Wm. H. Fox, ought not to have been permitted to testify to the handwriting of the attesting witness to the deed of trust, Rebecca Fox. She is not shown to be dead. She is living. Secs. 4652, 914 and 918, R. S. 1899.

O. F. Smith and O. P. Ray for respondents.

(1) "Under a general denial the defendants may prove any fact which goes to show plaintiffs never had a cause of action." Madison v. Railroad, 60 Mo.App. 600; Scudder v. Atwood, 55 Mo.App. 522. "An officer's certificate of acknowledgment of a deed is only prima facie evidence of the truth of its recitals, and the officer who took the acknowledgment is a competent witness, either to support, or to impeach it." Comings v. Leedy, 114 Mo. 454. "The general denial puts in issue every fact included within the allegations of the petition, which the plaintiffs must prove in order to recover." Northrup v. Ins. Co., 47 Mo. 435; Springer v. Kleinsorge, 83 Mo. 152; Pierce v. Georger, 103 Mo. 540; Wannell v. Kem, 57 Mo. 478; Sharp v. McPike, 62 Mo. 300; Steffen v. Bauer, 70 Mo. 399; Mays v. Pryce, 95 Mo. 63. (2) The deeds read in evidence, considered along with the testimony of Patton, clearly show that the pretended note and deed of trust, under which plaintiffs claim title, were without any consideration passing from either James R. Fox or his wife, Delia Fox, to defendants, or either of them, and Patton further stated they had an abstract of the title to said property examined by their attorney, showing that the "idea always held out" to Patton, by J. R. Fox, while the negotiations were going on between them, concerning said note and deed of trust, was false and fraudulent, and was so made by said J. R. Fox with the fraudulent intent and purpose of obtaining the two years' credit on the purchase price for the stock of drugs, bought by him of plaintiffs. The testimony of plaintiff Patton shows that Delia Fox, the alleged beneficiary in said deed of trust, took no part whatever in the transaction; the negotiations and conversations with reference thereto "were all had with James R. Fox." There was no proof offered to show that Delia Fox ever had possession of said papers, or assigned same to plaintiffs. Nor is there any pretense, or claim, that James R. Fox was acting as the agent for his wife. (3) The defense being that there was no deed of trust; that the alleged deed of trust was a forgery, both defendants were competent witnesses to testify as to such forgery.

OPINION

In Banc

MARSHALL J.

Ejectment for fifty acres of land in Chariton county. The petition is in the usual form. The defendants are Minnie E. Fox and her husband, W. H. Fox. The answer of W. H. Fox is a general denial. The answer of Minnie E. Fox is a general denial, with a special plea that she is the owner, in fee simple, of the land, and that it is her homestead, but the allegation as to homestead she admitted on the trial was not the fact. The case was tried by the court, without a jury, and judgment was entered for the defendants, from which the plaintiffs appealed.

The trial developed the following facts and proceedings: The plaintiffs offered in evidence a deed of trust, dated April 25, 1893, purporting to have been made by Minnie E. Fox and William H. Fox, her husband, parties of the first part, to H. O. Grubs, trustee, party of the second part, and Delia Fox, wife of James R. Fox, party of the third part, conveying the land to secure a note of even date, for seven hundred and seventy dollars, payable two years after date to the order of Delia Fox, wife of James R. Fox, signed Minnie E. Fox, William H. Fox. This deed of trust appears to have been regularly executed and acknowledged by Minnie E. Fox and William H. Fox, on May 8, 1893, before Wm. Clark, a justice of the peace, in Chariton county, and was recorded in that county on May 10, 1893.

The defendants objected to the deed of trust on the ground "that it never was executed by these parties as it appears to have been by the certificate of the justice. Mrs. Fox never signed it and never appeared before the officer and never executed this deed at all." The court overruled the objection, and the deed of trust was read in evidence.

The plaintiffs then offered in evidence a deed from the sheriff, acting as trustee under said deed of trust, dated November 30, 1895, to the plaintiffs, conveying the land to the plaintiffs, by virtue of the foreclosure of the deed of trust. The defendants objected to this deed because the deed of trust was a forgery and, therefore, it afforded no basis for the deed to rest upon. But the court permitted the deed to be read in evidence. The value of the rents and profits and the damages having been agreed upon, the plaintiffs then rested.

The defendants then called Mrs. Minnie E. Fox as a witness, and it appearing from her testimony that Delia Fox, the payee of the note and the cestui que trust in the deed of trust under which the plaintiffs claim title, was dead, the plaintiffs, for this reason, objected to Mrs. Fox testifying. The court overruled the objection, and plaintiffs duly saved an exception to the ruling. Thereupon Mrs. Fox testified she never signed or executed or acknowledged the note or deed of trust, never appeared before Wm. Clark, the justice of the peace, at any time, and never saw him until the day of the trial. She also testified that she never signed, executed or acknowledged a deed of trust, at any time, upon the land, to Delia Fox, before justice Shaughnessy, and that she never signed, executed or acknowledged any deed of trust upon the land, for any amount, at any time or to any person, and never heard of any such pretended deed of trust until 1895, when the plaintiffs were about to foreclose the deed of trust offered in evidence by them. The plaintiffs further objected to all this testimony, because the issue of the execution of this deed was not tendered by a plea by the defendants under oath denying the execution of this instrument. The court overruled the objection and plaintiffs duly excepted.

The defendants also called as a witness, William H. Fox. The plaintiffs likewise objected to his competency as a witness because the other party to the contract, Delia Fox, was dead and also because the execution of the deed of trust was not denied under oath or any issue tendered as to the genuineness of the note and deed of trust. The court overruled the objection and the plaintiffs excepted. Thereupon William H. Fox testified that he never signed, executed or acknowledged the deed of trust, and never...